Recently, I represented a client in a jury trial. I've done a lot of jury trials before, but this was my first time in front of this particular judge. Every county handles their jury trials differently, and every judge within every county handles jury selection differently. When selecting a jury, we conduct what's called “voir dire,” which is essentially questioning the panel of possible jurors. I've selected juries in several different counties in front of different judges, and one thing I always do with my panel is tell a story to humanize myself and illustrate to them what we mean when we ask them “can you be a fair and impartial juror?” This time, though, I was hit with a peculiar admonition by the judge that I never expected.
Everybody in our country has the right not only to a trial by a jury of their peers, but to have a jury that is fair and impartial. When I conduct the voir dire, one of the things I'm looking to see is if there is anybody on the panel of potential jurors who would not be able to remain fair and impartial for any reason. Everybody has biases based on their own life experiences, so I always try to explore those and strike for cause anybody who would not be able to put aside their biases and render a fair and just verdict.
It's important to humanize yourself when conducting voir dire. Jurors need to know that you're not just some big bad defense attorney (or plaintiff's attorney). They need to like you. They need to trust you. The way I do that is to always start or end voir dire with a story about myself and the type of jury I couldn't sit on. I do this because it not only makes me more endearing to the jury, but it puts into simple terms what I mean when I ask them, could you be fair and impartial? The story I tell is as follows…
The point of voir dire is not to find the jury we think is most likely to rule in our favor or help us win a case; rather, the point is to find people for whom this is the RIGHT jury. Let me give you an example of what I mean by that. I'm extremely active in animal rescue. I volunteer a lot and am passionate about saving homeless and abused animals. In fact, I have two rescue cats that I love, and if anything happened to them, I'd be devastated. So, if I was called into jury duty and the defendant was charged with animal cruelty, I couldn't sit on that jury. Because of my experiences with animal rescue, I would want that person to be guilty and be punished for what he or she did. I couldn't put my bias aside, so it wouldn't be the right jury for me. With that in mind, does anybody feel this wouldn't be the right jury for them?
By the time I've told this story (which, by the way, is 100% true), the judge and the DA have asked numerous questions, including specifically asking if the jurors can be fair and impartial. But this story inevitably leads to at least one or two people, sometimes more, who raise their hands and say it's not the right jury for them. They almost always volunteer why, and I can usually strike them for cause. I've now been able to connect with the jury, plus I've identified jurors who shouldn't be on my jury but otherwise may have been picked had I not illustrated what we mean by fair and impartial.
At my recent trial, as I have in all my other jury trials, I told this story. I've never been stopped by a judge before or told that it's not something I should be saying. As always, I had another person raise their hand and tell me they didn't think they could be on this jury. Afterwards, the DA and I were called up to the bench for what I thought was our final challenges to people we thought should be excluded from the jury. However, as soon as the DA and I got to the bench, the judge immediately asked the DA if she wanted a new panel of jurors. We were both completely confused as to why she would need a new panel to choose from, until the judge began reprimanding me.
The judge informed me that he'd better never again hear me tell a jury that I could not be fair and impartial. According to him, as an attorney, I'm an officer of the courtand it's therefore my job to remain fair and impartial. Telling potential jurors that I couldn't sit on a jury for a case is completely inappropriate, because it makes them think it's okay to admit that they have biases and shouldn't be picked. Mind you, all of this was done in front of the jury. When he was done, he just stared at me. I think he was waiting for me to apologize or say he was right or something. I just stared back, mainly because I wasn't sorry, and I didn't think he was right.
I had two problems with what he was saying. First of all, just because I'm an officer of the court doesn't mean I'm not human. Developing biases through life experiences is natural. It's why the Disciplinary Board gives attorneys an out when confronted with a client they can't adequately represent because of these personal beliefs. It's why the Code of Judicial Conduct requires judges to recuse themselves in cases where they have personal biases they can't put aside. For this judge to tell me I'm required to be fair and impartial at all times in every case, simply because of my chosen profession, astounded me.
Second, when he said it would make jurors think it's okay to admit their biases, I almost said to him, well, it is okay. That's the point of voir dire. We question jurors about their life experiences and preconceived notions for the sole purpose of figuring out who is able to sit on a jury and fairly assess the evidence presented to them. If they're told a story that helps them see they can't do that, why is that a bad thing? They should be encouraged to admit this. Otherwise, we could just do away with the voir dire process, draw names out of a hat, and hope for the best.
Although this will not stop me from using this strategy when selecting a jury, I've learned this is something I can't do in front of this judge. I'll continue to tell my story in front of every judge that allows me to. It's a great way to personalize myself to the jury and discover who I definitely don't want determining the guilt or innocence of my client.